Labour Rights in Bosnia and Herzegovina

One of the biggest problems in the area of human rights ni Bosnia and Herzegovina is the non-observance of rights of workers, amply demonstrated by the statistical data collected by the associations for free legal assistance, which are used largely by those who fail to realize their labour and employment related rights.

According to the Constitution, there is no unified national system to regulate the area of labour rights, with competences fully located on entity levels. Employment rights in the Bosnia and Herzegovina Federation and the Republic of Srpska are regulated in the Law on Labour of the B&H Federation, the Labour Law of the Republic of Srpska, the General Collective Bargain Agreements for the Federation and RS, respectively, the employment by-laws and acts adopted by the employers.

Speaking of labour legislation, we should bear to mind that the B&H Constitution takes precedence over entity legislation, so that employment related rights and obligations can�t be regulated if not in accordance with international standards as listed in the Constitution. The international standards are defined and outlined in the European Convention of Human Rights and Fundamental Freedoms; the International Covenant on Economic, Social and Cultural Rights, and Conventions adopted by the International Labour Organization and European Social Charter.

The very purpose of these documents is to define the right to work, just compensation (salary) and social insurance, workplace health and safety issues, the right to establish and join trade unions, prohibition of discrimination in any form, equal opportunities for advancement, protection by the state, etc. However, on the basis of the existing situation, we could conclude that those international legal acts did not take roots in B&H, although the country has a clear obligation to establish the mechanisms to secure their application.

The most common violations of workers� rights are connected to termination of employment, late salaries that were earned but have not been paid, and severance payments. The termination of employment for economic, technical or organizational reasons is defined in Article 87 of FB&H Labour Law and Article 124 of RS Labour Law.

These provisions are too vague and leave ample space for abuse by the employers, which happens quite often.

They provide for the employer to be able to terminate an employment contract, with appropriate and timely notice, if:
1. such the termination was justified by economic, technical or organizational reasons
2. if an employee is unable to complete his/her duties as listed in the contract.

The legislators didn�t provide details on what will be considered a justified termination. Rather, it has been left to the better judgment of the employers to estimate if such reasons have occurred, and many workers have been laid-off pursuant to these provisions. The same opinion of vagueness is equally valid in terms of the provisions regarding the duties and obligations of employees, which is also left to the employer and his discretion to determine. This easily leads to a situation in which the opinion on, say, health status of an employee in terms of his/her ability to work at a job is made by the incompetent employers, and not by the experts from healthcare institutions.

In addition, employers often fail to adhere to legal provisions. So, it happens a lot for employers to not present written termination of employment contract with appropriate detailed rationale, as provided by the Law, but to inform an employee that he or she is fired, or hand it a written decision on termination of employment without listing possible remedies and the right to severance. Without such a written decision, an employee can�t pursue some of his or her rights, such as to report to the unemployment bureau, regulate health insurance, apply for unemployment allowance, etc.

Another great problem involving violations of workers� rights is the issue of payment of delayed earned salaries. Although Article 83 of RS Labour Law and Article 68 of FB&H Law state that an employee has the right to salary as defined by the Collective Bargain Agreement and other by-laws, quite often we see that employers don�t pay the earned salaries on regular basis. The RS and FB&H Collective Bargain Agreements and other by-laws (Rules of Employment and Employment Contracts) oblige the employers to calculate and pay the earned salaries no later than 30 days after the period for which the compensation is due is over, and failure to act upon that obligation may result in misdemeanour charges for those responsible. Also, an employer is obligated to present an employee with written note with calculated gross and net salary, which happens rarely, so that this provision remains a dead letter on paper. This makes it harder for employers to pursue protection for their violated rights regarding salaries in a court of law, which requires that all documentation on calculation, amount and payment are presented as evidence to the court.

The severance payments in cases of termination of employment contract that were not faulted by the employee, or retirement severances, are regulated in the respective Labour Laws of RS and FB&H (Articles 127 and 120, respectively), are rarely acted on in practice, so that this type of compensation is commonly pursued through the Courts, in a litigation.

Putting employees �on wait� or �redundancy� status is one of the major problems of the B&H Federation. In many cases, it happens for employees to unilaterally, without explanation, put their employees �on wait�, disregarding the employment contract obligations they accepted, pursuant to Article 70 of the FB&H Law on Labour, covering primarily the compensation for the time spent in suspension. The amount of the compensation is determined with the Collective Bargain Agreement, Rules of Employment and Employment Contracts, but in practice, it is usually determined by the employer, leaving litigation the only possibility for employees to seek protection for their rights. The Courts, in fact, usually accept their demands as reasonable and founded.

Although Labour Laws prohibit all forms of discrimination in employment, the legislators found it necessary to add certain provisions to emphasize protection of pregnant women, as defined in Acticles 53 and 71 of FB&h and RS Labour Laws, respectively. However, in practice, pregnant women are rarely employed, which in not so few cases, pregnant women with valid full-time employment contracts are laid off under redundancy rules.

Entity legislation establishes the obligation to form Commission for Implemeentation of Articles 143 and 152, as instruments of workers� rights protection used by many employees to try and protect their rights regarding establishment of legal status, by petition to competent bodies. Lamentably, the work of such commission has proven to be slow and professionally incompetent.

In majority of cases, decisions are yet to be adopted five years upon filing of complaints, and committees in the second degree often take two years or more to review the complaints. To make it worse, of those few decisions actually adopted, only a fraction is executed by forcing the employees to make minimal severance agreements with the employees, with payments pursued in the Courts.

In addition to the above, there is a huge number of workers in Bosnia and Herzegovina that have no rights to healthcare or any guarantee to achieve the right to full retirement in the future.

According to the survey conducted by the reporters of the Sarajevo based Centre for Investigative Journalism (CIJ), over 240,000 citizens work on the black market, surviving on low and irregular salaries earned there. CIJ journalists talked to workers, pensioners, employers, trade unions, labour inspectors, tax authorities and pension funds� officials about the grey economy labour market. The results of their surver are presented in the Project/Report of the Centre �Working Life in the Gray Zone�.

Trade unions say they are powerless, inspectors who should uncover violations and expose the law-breakers also claim there is nothing they could do. Pension funds officials and tax authorities don�t pressure state and private companies to pay social allowances, they don�t keep records of perpetrators and don�t expose them in public. Employers that do admit to failing to comply to their obligations list the negative economic situation and high taxes as their excuse.

Trade unions in Bosnia and Herzegovina are gathered into the Association of Independent Trade Unions of Bosnia and Herzegovina (SSSBiH), the Trade Unions of the Republic of Srpska (SSRS) and the Trade Union of Brcko District.

SSSBiH is organized in 22 branch unions that protect interests of workers in various sectors of economy and government, and with its 150,000 members is the greatest trade union in the country.

SSRS has 14 sectoral branches that fight for the interests of their members, as guaranteed by the labour legislation and international conventions. SSRS represents the needs of the workers to connect in a single entity that would be legitimately represented at the level of Republic of Srpska.

The Brcko District Trade Union was established on February 7, 2001, in accordance with the agreement between SSSBiH and SSRS of May 23, 2000, as voluntary interest-based organization of workers in the Brcko District. The Trade Union pursues activities of common interest of its members, cooperates and acts together with entity trade unions in BiH and other trade unions in former Yugoslavia, as well as trade unions of Europe and the world, with the goal to strengthen trade-union cooperation.

The three trade unions established the Confederation of Trade Unions of Bosnia and Herzegovina (June 24, 2005), with the aim to provide more efficient protection of interests and rights of workers in B&H. It adopted a four-year working programme (2005-2009), which focuses on the fight for human, worker and union rights, with the goal to prevent the negative effects of transition and privatisation in Bosnia and Herzegovina.

However, in spite of possibility for organization and existence of union structures, the trade unions lack the necessary power to protect the interests of their members and oppose the indifference of Government and arrogance of the employers, who refuse to enter a dialogue with workers until they decide to seek more radical methods of protest, such as road-blocks and hunger-strikes. We should emphasize here that the workers are somewhat forced to such actions because they lack a more active support by trade unions. The role of the trade unions has been greatly reduced to mere rhetoric, and yet, we could say that they did have some good results, especially in terms of collective bargaining. The reorganization of trade unions, adoption of a stronger and clearer positions and more decisive activities is necessary if they wish to provide true protection for worker rights.

What we said above leads to the conclusion that the field of labour rights is unregulated, the economic situation in the country is critical, and that even the existing positive legislation is largely unimplemented.